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CONCILIATION AND LABOR ACT, R. S. (1906), CHAPTER 96.

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HISTORY OF FEDERAL LEGISLATION.

The history of legislation by the Federal Government relative to the prevention of strikes and the peaceable adjustment of disputes between railways and their employees dates back to the year 1888. An analysis of this legislation and the operation of the various laws has been set forth in another report recently prepared by the Board of Mediation and Conciliation, the leading features of which are succinctly presented below:

HISTORY OF MEDIATION AND ARBITRATION LEGISLATION.

THE ACT OF 1888.

The first law dealing with the adjustment of controversies between transportation companies and their employees was approved October 1, 1888. It

1 Railroad Labor Arbitrations. Report of the United States Board of Mediation and Conciliation on the Effects of Aribitration Proceedings upon Rates of Pay and Working Conditions of Railroad Employees. Senate Document No. 493, 64th Cong., 1st sess.

provided for voluntary arbitration and substantially for compulsory investigation. The law of 1888 provided that in the event of controversy either side might propose in writing to submit the differences to arbitration; and if the other party to the controversy should accept the proposition each side should then appoint one arbitrator and these two should select a third. The three persons thus selected were created a board of arbitration.

The board of arbitration was given all the power of administering oaths, subpoenaing witnesses, requiring the production of papers, etc., that belong "to the United States commissioners appointed by the circuit court of the United States."

The act of 1888 provided that upon the conclusion of its investigation the decision of the board of arbitration should be publicly announced and a copy of it filed with the Commissioner of Labor of the United States. No provision of any kind was made for enforcing any award of the board, and the act evidently relied on the force of public opinion to make effective the decision of the arbitrators. In this respect the act of 1888 is similar to the Canadian act. The act of 1888 provided also that the President might select two commissioners who, together with the United States Commissioner of Labor, should "constitute a temporary commission for the purpose of examining the causes of the controversy, the conditions accompanying, and the best means for adjusting it." The report of the commission was to be transmitted to the President and to the Congress. The services of such commission might be tendered by the President for the purpose of settling a controversy "either upon his own motion or upon the application of one of the parties to the controversy or upon the application of the executive of the State." A commission thus created by the President was given all the power and authority given to the board of arbitration. The commission's decision was to be made public and was to advise the respective parties what, if anything, ought to be done or submitted to by either or both to adjust the matters in dispute." As in the case of the arbitration boards, no means were afforded for enforcing the decisions of these special commissions.

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The provisions of this act were never utilized.1

THE ERDMAN LAW.

The Federal law which superseded the act of 1888 is commonly known as the Erdman Act. This law provided means for the mediation and arbitration of controversies affecting railways and their train-service employees and was the basis of existing legislation. It was enacted in June, 1898. During the first eight and a half years following the passage of the law only one attempt was made to utilize it. Within the next five years, however, its provisions were invoked more than 60 times, the effectiveness of the law established, and methods of procedure under its provisions fully developed.

THE PROVISIONS OF THE ERDMAN LAW.

The scope of this law included only employees directly engaged in the movement of trains-engineers, firemen, conductors, trainmen, switchmen, and telegraphers. The mediation proceedings were purely voluntary. Either party to a controversy might invoke the assistance of the Federal mediators, the chairman of the Interstate Commerce Commission, and the Commissioner of Labor. The mediators had no power to intervene in any controversy upon their own initiative. Their activities "were conditioned, first, upon the receipt of a request for mediation under the law from one of the parties to the controversy, and second, upon the acceptance by the other party of the mediators tender of friendly offices."1

PROCEDURE UNDER THE ERDMAN LAW.

The course of procedure for the peaceable settlement of wage disputes under the Erdman law was followed under the provisions of subsequent legislation. It has been well described in a bulletin issued by the Bureau of Labor, which

1 Mediation and Arbitration of Railway Labor Disputes in the United States, by Charles P. Neill, Bulletin No. 98, U. S. Bureau of Labor.

2 See appendix.

may be quoted in order that the prevailing methods of adjustment of controversies may be fully understood:

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"The course through which the mediation provisions of the Erdman Act are invoked is ordinarily somewhat as follows: A controversy arises between a railroad company and one or more classes of its employees coming within the provisions of the act. This controversy may relate to proposed changes in the existing rates of pay or the existing regulations governing working conditions, or it may arise over some grievance growing out of a misunderstanding of the terms of the existing contract and involve no proposals for changed conditions. If no settlement can be reached by the local committee or the general committee directly representing the employees on the road or roads involved, the questions in dispute are referred by the employees to their national organization, and a grand officer, as he is termed, of that organization then takes the matter up directly with the road or roads involved and endeavors by direct negotiation to effect a settlement. If this effort fails, the questions in dispute and any proposal of settlement offered by the road are usually laid before the employees concerned, and they are asked to vote upon whether they are willing to inaugurate a strike unless some basis of settlement more satisfactory to their representatives than the one offered can be secured. If the vote of the men is in favor of a. strike to enforce their proposals, the grand officer again opens negotiations with the road in a further effort to effect an amicable adjustment of the controversy. If these negotiations prove fruitless, or if at the outset it is apparent that no settlement can be effected directly by the parties concerned, one or the other of the parties to the dispute makes an application to the mediators designated in the Erdman Act, requesting them to use their friendly offices to bring about an amicable adjustment of the controversy and avert the threatened strike.

"When both sides have agreed to mediation proceedings they are as a rule begun very promptly, usually the only delay being that which is involved in getting the parties concerned together at the place decided upon. By reference to the date and place where the mediation proceedings have begun, and comparing these with the date the application was received, some idea may be gained of the promptness with which it has been felt necessary to take up negotiations in the majority of the cases in which the provisions of the Erdman Act have been invoked. There is no fixed rule as to where mediation proceedings shall be held. In numerous instances the representatives of the parties in controversy have come to Washington, and the negotiations have been conducted there. When this has not been feasible or desirable, one or both mediators have gone to the place in which the parties had up to that time conducted their negotiations, and the mediation conferences have been carried on there. The mediators have covered a rather wide range of territory, having carried on conferences at points as remote from Washington as St. Paul, Denver, and El Paso.

"The proceedings are purposely kept as informal as possible, in order that they may be the more readily adapted to the exigencies of any given case. Conferences are always held with the two parties to the controversy separately, and a joint meeting is never arranged until either a complete settlement of the questions in dispute or an agreement to arbitrate has been brought about by the mediators and agreed to in writing by the two parties.

"Ordinarily the mediators begin by meeting the representatives of the side by which the mediation was invoked. After learning the matters at issue and discussing these in a general way, a conference is held by the mediators with the other party to the dispute. Successive conferences are then held by the mediators with one or the other party alternately, or it may happen that several successive conferences are held with one side before again conferring with the other side. The procedure in this respect is a matter governed entirely by the nature of the questions at issue and the particular conditions existing in any given case.

"No limit is set to the number of conferences which may be held nor to the period which may be devoted to the mediation proceedings. Some cases have been brought to a successful termination within a few days, but these are exceptions; from one to two weeks is more nearly the rule. In some of the large cases where conditions were peculiarly acute, and a tension existed which made it important to secure a settlement at the earliest possible moment. conferences have for days at a time been carried on throughout the entire day and far into the night; and even what were practically all-night sessions have not been unusual.

"While the procedure usually follows the above lines, any variation which seems desirable may be introduced, and the only fixed and unvarying rule is that neither side shall know what concessions the other side is willing to make unless and until an amicable agreement is reached. This rule has been adopted because both sides are more likely to make concessions if there is no danger that these concessions may later on be used to their disadvantage if the case should go to arbitration. It is always possible that the mediation proceedings may prove ineffective and that the case may go to arbitration. In that event, if any concessions offered by either side were known to the other side and could be adduced before the arbitrators as offers once made, it is obvious that the side which had offered the concessions in the mediation proceedings would be to that extent at a disadvantage in arbitration proceedings. The rule above referred to prevents this difficulty and leaves both parties free to suggest concessions without fear of future prejudice. In the event of a failure to secure a settlement through mediation in any given case, neither party at the end of the proceedings would have any definite knowledge of what concessions the other had been willing to make, and both are therefore in the same relative position as they were when the proceedings began. Neither has gained any tactical advantage, nor has either had its side of the case prejudiced by what has passed during the mediation proceedings.

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No minutes are taken nor are any formal records kept of what occurs in the meetings between the mediators and the respective parties to the controversy. Ordinarily the only thing which becomes a matter of formal record is the final articles of settlement agreed to and signed by the parties in dispute. "Unless requested or authorized to do so by the parties to the controversy, the mediators do not make public the terms of settlement agreed upon through mediation.'

"It is true that these proceedings are carried on by Government officials under Government authority and at Government expense, and it might be argued that these facts render the controversies public matters. On the other hand, it may be held that since differences between certain classes of employers and employees engaged in interstate traffic may, if unadjusted, cause serious public inconvenience and serious public loss, the Government merely furnishes the machinery for bringing about an amicable settlement if the two parties to a controversy can not themselves come to terms; but that, nevertheless. these disagreements remain primarily the concern of the employers and employees involved. The mediators, however, are primarily concerned only with the policy that will render most effective the operations of the law, and it is believed that leaving to the parties in dispute to determine the degree of publicity to be given to the terms of settlement is much the best policy.”

In the event that efforts to secure an agreement through mediation prove unsuccessful, it was provided in section 2 of the law that the mediators shall attempt to have the controversy submitted to a board of arbitration for settlement.

Sections 3 to 7, inclusive, of the act specified the form of arbitration agreement that should be entered into by the parties to the controversy. The method of selecting the arbitrators was set forth, and a restricted right of appeal to the courts from the award of the arbitrators was granted.

The law provided that each party to the controversy select one arbitrator. Together, these two arbitrators select the third arbitrator, if they are able to agree within five days after their first meeting. In the event the third arbitrator is not named in this way within the five days, the law provided that he shall be named by the presiding judge of the Commerce Court and the Commissioner of Labor acting together.

THE NEWLANDS LAW.

The next step in legislation relative to mediation and arbitration was the so-called Newlands law, approved July 15, 1913. It created the offices of Commissioner of Mediation and Conciliation and Assistant Commissioner of Mediation and Conciliation, and further provided that the President shall also "designate not more than two other officials of the Government who have been appointed by and with the advice and consent of the Senate, who, to

1 In this respect the treatment of mediation proceedings differs widely from that of arbitration proceedings. The latter are usually carried on in open hearings, and all the papers, including the award and a certified stenographic copy of the testimony, are filed in the clerk's office of the United States circuit court and become matters of public record.

gether with the Commissioner of Mediation and Conciliation, shall constitute a board to be known as the United States Board of Mediation and Conciliation." In August, 1916, the board was increased to three members by the designation by the President of the Assistant Commissioner of Mediation and ConIciliation as a member.

The law in general reenacted the provisions of the Erdman law relative to mediation. It also provided for three-member boards of arbitration as authorized by the Erdman Act, but, in addition, in order to meet the criticism of three-member boards placing too much power in the hands of the neutral arbitrator, it provided further for six-member boards of arbitration, composed of two representatives from each side to a controversy and two neutral members representing the public.

The immediate cause for the passage of the present law grew out of the demands of the conductors and trainmen, which had been presented, in a concerted movement, some months previously to 42 eastern railroads in what is known as eastern associated territory. The direct negotiations between the parties resulted in a refusal by the railroads to grant the demands of the men on the ground that the rates of wages then prevailing were adequate and that the employees were working under favorable conditions. A strike vote had been taken, resulting in some 97 per cent of the employees voting to withdraw from the service of the railroads unless their demands were complied with. The situation was an aggravated one and reached an acute stage early in July, 1913. The public mind was excited, and the bill which had been pending in Congress for some months was, upon the advice of the President, promptly enacted into law to meet the emergency.

CONTROVERSIES ADJUSTED.

In the enactment of Federal legislation emphasis was placed upon arbitration as a method of settling disputes between transportation companies and their employees. Under the operation of the various laws, however, it soon became evident that mediation proceedings were to take the leading part. There were in all 61 cases settled on request of the parties either by mediation under the Erdman law or by arbitrations in accordance with its provisions. Seven of these cases were concerted movements, involving many of the various classes of employees and involving in each instance a large number of railroads, in one case as many as 64 roads. Of these 61 cases coming under the Erdman law during the 14 years of its existence, 28 were settled through mediation, 8 were settled by mediation and arbitration, and 4 by arbitration alone. In the remaining 21 cases the services of the mediators, requested by one of the parties, were either refused by the other or direct settlements were reached between the parties after the services of the mediators were invoked without employing them or resorting to arbitration.

From the time the Newlands law was approved, on July 15, 1913, up to May 15, 1916, 56 controversies have been adjusted by the Board of Mediation and Conciliation. Of this number 45 were settled by mediation and 11 by mediation and arbitration. In 20 cases employees made application to the board for its services, the railroads applied in 13 cases, and in 15 cases the railroads and their employees made joint application. In 8 cases the board proffered its services, which were accepted.

DIGEST OF THE NEWLANDS LAW.

A digest of the so-called Newlands law of 1913, the legislation now in force relative to the conciliation and arbitration of railway wage disputes, is set forth below.

DIGEST OF MEDIATION, CONCILIATION, AND ARBITRATION ACT, 1913.

SCOPE OF LAW.

(a) Employers: Interstate common carriers by railroad.

(b) Employees: All engaged in train operation or train service.

ADMINISTRATION.

(a) Commissioner and Assistant Commissioner of Mediation and Conciliation, appointed by the President.

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